Appeal from two orders of the Justice Court of the Town of Cornwall, Orange County (Francis Navarra, J.), entered March 12, 2008. The orders, respectively, granted so much of defendant's suppression motion as sought to suppress the results of a chemical test administered at the police station on the ground that there was no probable cause to find that he had violated Vehicle and Traffic Law § 1192, and dismissed the accusatory instruments charging violations of Vehicle and Traffic Law § 1192.

Order dismissing the accusatory instruments charging violations of Vehicle and Traffic Law § 1192 reversed, on the law, and said accusatory instruments reinstated.

Order granting so much of defendant's suppression motion as sought to suppress the results of a chemical test administered at the police station on the ground that there was no probable cause to find that he had violated Vehicle and Traffic Law § 1192 reversed, on the law, said branch of defendant's motion denied, and matter remitted to the Justice Court for determination of any remaining suppression issue and for all further proceedings.

Following a highway incident, defendant was pulled over, arrested, and ultimately charged with, inter alia, two counts of driving while intoxicated (Vehicle and Traffic Law § 1192 [2], [3]). After a hearing on a motion by defendant to suppress statements on Huntley grounds, and to suppress the results of a chemical breath test administered at the police station on the ground that there was no probable cause for his arrest for violating Vehicle and Traffic Law § 1192, the Justice Court issued two orders one granting so much of the motion as sought to suppress the results of the chemical test administered at the police station; the other dismissing the accusatory instruments charging violations of Vehicle and Traffic Law § 1192 because of the suppression. [*2]

With respect to the order dismissing the accusatory instruments, even if it is assumed, arguendo, that there was a lack of probable cause to arrest defendant and that suppression of the evidence in question was warranted, the Justice Court was without authority to dismiss the accusatory instruments, because the determination of whether sufficient evidence remained to continue with the prosecution was a matter for the People to determine (see People v Asher, 16 Misc 3d 89, 90 [App Term, 9th & 10th Jud Dists 2007]). Accordingly, that order is reversed and the accusatory instruments are reinstated.

With respect to the order granting so much of defendant's suppression motion as sought to suppress the chemical test results, the arresting trooper's hearing testimony established that while the trooper was stopped by the side of the highway in connection with an unrelated incident, the car being driven by defendant veered over the fog line and almost hit the trooper's car. As the trooper pursued defendant's car, he saw defendant's car swerve. Upon stopping defendant, the trooper noted that defendant had an odor of alcohol on his breath, fumbled, and stumbled. The trooper further testified that defendant admitted to having consumed "one beer," and that a field breath test yielded a positive result for alcohol. Contrary to the conclusion of the hearing court, we find that the circumstances before and after the stop, as established by the credited hearing testimony, and when "viewed objectively" (People v Nesbitt, 1 AD3d 889, 890 [2003]), constituted probable cause for arresting defendant for driving while intoxicated, or, at the very least, for the closely related offense of driving while ability impaired (see Vehicle and Traffic Law § 1192 [1], [2], [3], [9]; People v Gingras, 22 Misc 3d 22 [App Term, 9th & 10th Jud Dists 2008]). Accordingly, that order is reversed, so much of defendant's suppression motion as sought to suppress the results of a chemical test administered at the police station is denied, and the matter is remitted to the Justice Court for determination of any remaining suppression issue and for all further proceedings.

Defendant's argument that there was no adequate predicate for the stop itself is an alternative argument for affirmance not properly before this court on the instant appeal by the People (see CPL 470.15 [1]; People v LaFontaine, 92 NY2d 470 [1998]; People v Goodfriend, 64 NY2d 695, 697-698 [1984] [with respect to issues that, under CPL 470.15 (1), the Appellate Division could not reach, defendant's arguments would "have to await a possible future appeal by him after sentencing"]; see also People v Cullen, 195 Misc 2d 692, 696 [App Term, 9th & 10th Jud Dists 2003]).

Rudolph, P.J., Scheinkman and LaCava, JJ., concur.
Decision Date: April 07, 2009